05.07.17
Gemini version available ♊︎The Malicious Campaign to Slow Down or Cripple the Patent Trial and Appeal Board (PTAB)
The patent microcosm wants to reduce patent quality (for profit)
Summary: The primary mechanism for defense from patents on software (and patent trolls that exploit these) is still under attack from those who profit from patent maximalism, i.e. low patent quality and frivolous litigation
THE impact of Alice and § 101 is profound. The patent microcosm is in somewhat of a panic because, in its own view, it's all just a storm (to their business model of litigation).
Assisting this microcosm are a few sites which we took note of before. Dennis Crouch of Patently-O, for example, is still hoping to slow PTAB down and help patent trolls etc. — those who rely on software patents the most. The other day he reprinted a piece from Saurabh Vishnubhakat of Texas A&M University School of Law (near the capital of patent trolls). When Patently-O covers a PTAB ‘case’ it’s usually a pro-software patents one (Cuozzo in this case) and this one is no exception. To quote:
The Federal Circuit’s panel decision in Achates Reference Publ’g, Inc. v. Apple Inc. held that PTAB decisions to institute IPR are unreviewable even where the § 315(b) time bar may have been violated. The en banc question here is whether to overrule Achates.
The USPTO’s interest in the case was clear from the large group of agency employees in attendance, including members of the PTAB and the Solicitor’s Office as well as Director Michelle Lee herself. The USPTO also formally intervened in the case and designated Mark Freeman from the DOJ Civil Division’s Appellate Staff to argue.
On another day last week Patently-O again complained that the Court of Appeals for the Federal Circuit (CAFC) isn’t wasting its time delivering a written judgment on every appeal from PTAB (as that would be almost infeasible). “The Federal Circuit,” Patently-O wrote, “has denied Leak Survey’s petition for rehearing en banc on the issue R.36. Perhaps ironically, the court has continued to remain silent on its justification for issuing judgments without opinion. Although the Supreme Court has generally empowered appellate courts to issue summary affirmances without explaining reasoning for their judgment, the statutes provide special rules for cases arising from patent and trademark cases. On the patent side, 35 U.S.C. § 144 requires the Federal Circuit to hear appeals from the PTO, “review the decision,” and, once a decision is reached “the court shall issue to the Director its mandate and opinion.””
How long is Crouch going to keep ‘harassing’ them in an effort to stifle the work of PTAB? Currently, CAFC agrees with PTAB about 80% of the time, based on an exhaustive survey of cases (both last year and this year). The thing about the patent maximalists is, they want more litigation and patent feuds. That’s just what they make money from and PTAB together with CAFC disrupt that. The patent microcosm is hoping to slow down PTAB, as we pointed out before, and Michael Loney says that they may be succeeding as after a record month there’s this slump: “The 121 Patent Trial and Appeal Board (PTAB) petitions filed in April was the lowest since the 118 in March last year. This follows a record quarter for filing at the start of this year, with 246 petitions filed…”
We certainly hope to see PTAB’s invalidation rate going up and number of petitions accelerating over time, in spite of smears and personal attacks from the patent microcosm.
A couple of days ago Morrison & Foerster LLP published this piece at IP Watch in which it said:
Thus, it appears likely that the Commission and the ITC Judges will be required to increasingly consider parallel IPR proceedings in ongoing Section 337 investigations, particularly where IPRs are at “advanced” stages.
What it means to say is, there are ITC cases (impending embargoes) that are hinged on dubious patents which may be about to get trashed by PTAB. Earlier today we wrote about one such case involving Microsoft’s patent troll Intellectual Ventures. We certainly hope that Alice, leveraged by PTAB judges, will help stop such trolls. █
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